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Arizona Daily Sun; March 26, 1999

(Front Page)

Judge guilty of record tampering

Flournoy to be disciplined today

 

By Howard Fischer

Capitol Media Services

 

Phoenix--- Coconino County Superior Court Judge Michael Flournoy tampered with an official court transcript, the Commission on Judicial Conduct ruled Thursday.

 

Following several hours of testimony the commission voted unanimously that there was "clear and convincing evidence" the judge had directed his court reporter to omit certain comments he made from a transcript. In those comments Flournoy said he was afraid that a man he had placed on probation might shoot him.

 

Excising those comments hampered efforts by the man's attorney to have Flournoy disqualified form further action in the case.

 

In making their ruling, the commissioners rejected Flournoy's contention he was within his rights a judge to ell his court reporter that certain comments made in chambers were off the record-- and should not be in the transcript-- even thought they already had been made and recorded. It also means the commission found the4 court reporter's version of events more credible than that of the judge.

 

With Thursday's decision, Flournoy either had been found guilty or admitted to the elements of all five charges brought against him. The commission will decide the appropriate penalty later today after hearing witnesses for both sides.

 

The commission has the power to recommend any discipline up to removal from the bench for the tampering offense, with the state Supreme Court having the final say. That maximum punishment, however, is not available in the other four charges because of separate deals Flournoy reached with the Commission.

 

Tempe Municipal Court Judge Louraine Arkfeld, who chairs the commission, announced Thursday the commission was reprimanding Flournoy for two of those violations.

 

One of those involves making "inappropriate" comments about the physical attributes of female attorneys and court staffers. The other is that he engaged in out-of-court discussions with attorneys about pending cases.

 

A reprimand is the maximum penalty for charges handled informally.

 

Flournoy separately admitted the other two charges of unjudicial conduct, including yelling at attorneys in his courtroom and threatening to put one in jail. That deal specifies that the maximum penalty is a six-month suspension as a judge.

 

It was only the tampering charge that Flournoy contested.

 

DOWTIN CASE KEY

At the heart of the issue is a case involving William W. Dowtin Jr.

 

Dowtin originally was indicted in 1995 on six charges, including kidnapping. A deal with county prosecutors allowed him to plead guilty to two misdemeanors and be placed on probation for three years.

Flournoy included numerous conditions on that probation including that Dowtin give up his occupation, which the judge said included selling guns and providing armed protection to people.

 

Nearly a year later his attorney, Charles Gustafson, sought to have the conditions of probation modified. He also asked to have Flournoy from the case because of bias.

 

Presiding Judge Jeffrey Coker rejected that effort, primarily, Coker testified Thursday, because it came too late. Coker also said, thought, he found no evidence of prejudice.

 

During the commission investigation of Flournoy, however, it was discovered there were parts of a conversation the judge had in his chambers about Dowtin that had never been made available to Gustafson.

 

That conversations occurred because Dowtin, while on probation, had been called as a possible juror in a medical malpractice case. When Dowtin expressed concerns in open court about being a juror in Flournoy's court, the judge moved the discussion into his chambers where Dowtin was questioned by the judge and the attorneys.

 

After Dowtin left, the conversation continued, still being transcribed by Kathryn Anderson, Flournoy's court reporter.

 

"I was so scared of this guy I would move to the courtroom at night because he's a gunman. I didn't want him to get plucked out of the chair." Flournoy said in the transcript. "I came down real hard on him and put him on probation with these conditions."

 

Only moments later, when one of the attorneys asked if they were "still on the record." Did the transcript stop.

 

Anderson testified Flournoy told her he wanted to know if anyone requested a copy of that transcript. She said the judge told her the transcript should end when Dowtin left the room-- before the comments.

 

"I said, ' don't feel comfortable with that' "Anderson, said, saying that it would be a breech of ethics, "He said, 'Just do it' "

OFF THE RECORD?

Flournoy testified he presumed the conversation after Dowtin left was, in fact, off the record. He denied ordering Anderson to alter the transcript, saying only that he told her, in response to her question, that the last portion was not part of the record.

 

So when Gustafson sought a copy of the transcript of what occurred during the jury selection process, he got only what happened until his client left the room. Gustafson said that information might have made a difference in the disqualification hearing.

 

"My goal was to get to the truth about he felt about my client… as it related to his continuing on that case." he said.

Flournoy said he didn't have any special feelings about Dowtin that made him unable to be fair. He conceded, though, there were fears.

 

This is a man who's charged with five serious felonies with a gun," he said.

 

"This was an individual that, at the time of sentencing, I ordered the probation officer to search his house and his barn." the judge continued, "He had vast amounts of explosives and gunpowder."

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